Recent Ninth Circuit Decision Makes it Easier for Authorities to Search Electronic Devices

24 Apr Recent Ninth Circuit Decision Makes it Easier for Authorities to Search Electronic Devices

Posted at 20:23h in Criminal Defense, Uncategorized by

Recently, the Ninth Circuit decided the case of United States v. Payne, holding that forcing an individual to use their thumb or finger to unlock an electronic device does not violate their Fifth Amendment right against self-incrimination. The holding would certainly also apply to forcing someone to look at their electronic device for purposes of unlocking it with facial-recognition software, which is common on phones and tablets today.

The Ninth Circuit explained an act does not implicate Fifth Amendment rights unless it is: (1) compelled; (2) incriminating; and (3) testimonial. If law enforcement forces someone to use their finger or look at their device to unlock it, there is compulsion. If one reasonably believes a disclosure could be used in a criminal prosecution or could lead to other evidence that might be so used, then the incriminating prong is satisfied. The only element at issue in Payne, where the defendant had damning evidence of drug trafficking on the phone officers forced him to unlock with his thumb, is whether the forced act of using his thumb was testimonial. The Ninth Circuit decided that it wasn’t.

Testimonial communications are those that explicitly or implicitly relate a factual assertion or disclose information. The testimonial prong probably most commonly arises in the white collar context, when someone who is suspected of committing fraud receives a subpoena for various records related to the fraud. The analysis in such a situation is complicated and fact dependent. Subject to certain important exceptions, though, a defendant can sometimes avoid complying with a subpoena on grounds that merely turning over the documents conveys certain information in her mind— such as the fact that she knows that they exist and are in her control, or her choice of what documents are responsive to which demands—and is therefore testimonial, in violation of her Fifth Amendment rights.

In contrast to (sometimes) turning over subpoenaed documents, the Ninth Circuit reasoned, requiring a defendant to provide their thumbprint to unlock a device does not require the defendant to reveal anything in his mind. In doing so, it likened the compelled act to requiring a defendant to provide their blood in a DUI case or a fingerprint to compare with one left on a murder weapon—acts that courts have already decided are not testimonial. Note, though, we believe that the result in Payne would have been different if officers forced the defendant to tell them which finger was needed to unlock his phone, as that would have required him to divulge a non-obvious fact from his mind. Similarly, it would violate the Fifth Amendment to demand that an arrestee explain how to unlock a phone.

Most importantly, the decision in Payne will affect those under court supervision (bond, probation, parole, supervised release, etc.).  It is common for these individuals, and often mandatory, to be required to waive any Fourth Amendment objection to the search of their devices. Under Payne, many of these individuals can be forced to provide the metaphorical key to accessing their device and then have no recourse under the Fourth Amendment when it is searched.

But even for those not under supervision, Payne will still be important. Just because officers get a warrant to search a device does not mean that they are actually able to access it. It’s common for law enforcement to be behind the curve of overcoming device manufacturers’ privacy safeguards, even if they often eventually catch up, as this high-profile example illustrates. (From our experience, federal law enforcement is more technologically sophisticated at breaching these barriers than their state counterparts.)

Electronic devices are often the evidentiary bedrock for the prosecution. Don’t just think about drug dealers when you think about the use of phones and other such devices in criminal cases. Every crime that includes electronic communications, which is every white collar criminal case we’ve seen for at least the last decade, involves key communications that are stored on electronic devices.

And for those who believe that they have nothing to fear because they are not engaging in crime we have two things to say. First, not all crimes require defendants to know they are committing a crime, including some hyper-technical and non-obvious violations of white collar crime—we’re looking at you, California Government Code 1090. Second, authorities can get a search warrant for any device if they have probable cause to believe evidence of a crime will be found on it. They do not have to prove you engaged in a crime. If they think you have evidence of someone else’s crime on your device—say you exchanged emails or text messages with someone you thought was a legitimate professional but turned out to be a criminal—they may seek a search warrant for your devices.

Greg Nolan

Greg Nolan

Greg Nolan is Senior Counsel with Brown White & Osborn. He is a former federal and state prosecutor, whose practice focuses on white collar criminal defense, investigations of all types, and business litigation. He has been interviewed by national media on criminal cases and investigations.
Greg Nolan

Latest posts by Greg Nolan (see all)